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New York Trial Court Suggests That States May Not "Require That a Handgun Be ... Locked Up" in a Lawful Owner's Home:

Colaiacovo v. Dormer, decided last week, so holds:

The Petitioner was possessed of a pistol permit with a sportsman endorsement that was ... revoked ... altogether based upon circumstances surrounding the [suicide] of Petitioner's wife .... Apparently, the Respondent determined that the Petitioner's failure to keep his weapon in a locked safe, or otherwise inoperable was an unspecified rule violation....

In view of D.C. v. Heller there is a question as to whether the Petitioner's conduct relative to properly safeguarding his handgun was within the bounds of his constitutionally protected 2nd Amendment rights. If the Petitioner acted in a manner consistent with his existing constitutional rights relative to the care and safeguarding of his pistol, the State of New York may not diminish such other rights as he may otherwise possess or have been previously granted solely on the basis that some provision of State law ... dictates that he behave differently in derogation of his Second Amendment Rights. Simply put, the State of New York ... [is] no longer in a position to require that a handgun be stored in an inoperable condition or otherwise locked up if it is otherwise legally present in the owner's dwelling....

ORDERED ... that the matter is remanded for such further proceedings as Respondent deems necessary in order to make a determination and create a record as to whether and how the Petitioner's actions or inactions went beyond constitutionally protected conduct as recognized ... in D.C. v. Heller ....

As I read it, the court thinks that requirements that a handgun be stored locked or inoperable are unconstitutional, but other kinds of storage requirements might be fine. The remand is therefore to determine whether Colaiacovo may have acted in a supposedly unsafe manner beyond just storing the gun unlocked and operable. One could read the court as remanding the case for further discussion of whether Heller does indeed bar locked-or-inoperable-storage requirements, but that seems inconsistent with the sentence that starts with "Simply put."

The court seemed to assume that the Second Amendment applied to states and local governments — presumably because it's incorporated via the Fourteenth Amendment — and didn't at all discuss whether this should indeed be so. Thanks to David Hardy for the pointer; see also the Gun Legislation & Politics in New York blog.

FlimFlamSam:
The question of whether the Second Amendment should be selectively non-incorporated is not really one upon which reasonable people can disagree. It clearly is incorporated, despite some liberals' insistence that it is not incorporated.

(This is not to say that "incorporation" itself isn't a sham, just that if most of the rest of the Bill of Rights is incorporated, clearly the Second Amendment must be as well.)
11.6.2008 12:42pm
Leofwende (mail) (www):
My immediate thought was that the court also seems to assume that if the guy kept the gun locked and in a safe, that would have prevented the guy's wife from committing suicide if she really wanted to; as if she were not intelligent enough to know how to get around such constraints of her own accord. Even if the guy had taken the court's suggested precautions, that does not prevent the wife from - on her own - searching for such key or combination.

The guy's wife committed suicide for gosh sakes; he's probably torn up about it, and doesn't need the courts telling him it's his fault - something he probably already believes to some extent already. Ugh. People.
11.6.2008 12:43pm
Malvolio:
My immediate thought was that the court also seems to assume that if the guy kept the gun locked and in a safe, that would have prevented the guy's wife from committing suicide if she really wanted to; as if she were not intelligent enough to know how to get around such constraints of her own accord.
A requirement that a gun be so disabled that a competent adult lawfully in the home could not possibly use it would have to be unconstitutional under Heller. Were such a requirement allowable, DC could (and probably would) simply insist that any firearm kept in the home be encased in a solid block of concrete...
11.6.2008 1:18pm
Houston Lawyer:
New York's law is akin to saying you have first amendment rights, so long as you don't actually communicate with anyone.
11.6.2008 1:24pm
SeaDrive:
The state's logic suggests that the permit holder has an obligation to keep the gun out of his spouse's hands. That doesn't seem reasonable.

A well-ordered militia keeps its guns under lock and key, however.
11.6.2008 1:49pm
Bored Lawyer:

The question of whether the Second Amendment should be selectively non-incorporated is not really one upon which reasonable people can disagree. It clearly is incorporated, despite some liberals' insistence that it is not incorporated.

(This is not to say that "incorporation" itself isn't a sham, just that if most of the rest of the Bill of Rights is incorporated, clearly the Second Amendment must be as well.)


What does this mean?
11.6.2008 1:54pm
Smallholder (mail) (www):
"As I read it, the court thinks that requirements that a handgun be stored locked or inoperable are unconstitutional, but other kinds of storage requirements might be."

The wording in this sentence is unclear to me, but IANAL. Do you mean "Locked/inoperable rules are unconstitutional AND other storage requirements might be unconstitutional too" or "Locked/inoperable rules are unconstitutional BUT other storage requirements might be constitutional?"

[Good point, thanks -- fixed this. -EV]
11.6.2008 2:10pm
PatHMV (mail) (www):
Why is it that "privacy" rights require that the law allow the public sale of sex toys, the inducing of an abortion at a medical facility far from one's home, and the public purchase of birth control (not to mention the right to engage in the consensual adult sex acts of one's choice in one's own home), but don't confer the right to handle a gun as one see's fit, in the privacy of one's own home?

Maybe Second Amendment supporters have been fighting on the wrong front. Maybe we should rely on Lawrence and Griswold rather than Heller.

I'm actually asking a serious question here. If Lawrence says that the government has no legitimate interest in regulating consensual adult sexual activity in one's own home, then, independently of Heller, what is the government's legitimate interest in regulating how one stores a gun in the privacy of one's own home? We need Heller to secure for ourselves, perhaps, the right to acquire the gun to begin with, and maybe even to transport it to our house, but why limit ourselves to that? There's a whole big body of law having nothing to do with the 2nd Amendment that says the government generally shouldn't be telling us what to do in our own homes.
11.6.2008 2:42pm
PersonFromPorlock:
SeaDrive:

A well-ordered militia keeps its guns under lock and key, however.

If you still think the Second Amendment is about militias then I have a dandy argument for you that the Religion Clause is really about state-established churches.
11.6.2008 3:08pm
Happyshooter:
A well-ordered militia keeps its guns under lock and key

We don't have to argue about the whole 'second amendment means...' because your basic statement is wrong.

A well ordered (which we would now call well disciplined) fighting unit has its arms and basic fighting load of ammo ready to hand.
11.6.2008 3:27pm
Suzy (mail):
I'm curious about what the other storage requirements might be that WOULD be considered constitutional. Any idea what they have in mind here?

I'm also curious about whether there's a body of literature that separates the question of children being involved, since in popular discussion of this topic one often hears people making a distinction between rules that ought to apply when children are involved. I don't know how we are supposed to draw lines like that clearly and fairly, so I tend to reject all of that line of reasoning. But are there certain cases or writings about this that focus on the "children factor"?
11.6.2008 3:28pm
Carolina:

But are there certain cases or writings about this that focus on the "children factor"?



Prof. Volokh has written about how rare fatal accidental shootings of children are.

Here is his post. http://volokh.com/posts/1205343824.shtml

As you can read in Prof. Volokh's post, for children aged 1-7, the rate of accidental death by shooting is 1/20th the rate of accidental death by drowning and basically the same as the rate of accidental deaths in bicycle accidents. These drowning statistic is even more significant because the number of homes with swimming pools is tiny compared to the number with firearms.

Although of course any death is tragic, those numbers strike me as low enough that special legal standards are not needed.
11.6.2008 3:43pm
SeaDrive:
Happyshooter,

My comment (A well-ordered militia keeps its guns under lock and key.) was really just a wise-ass remark, but my experience as an enlisted man in the US Army bears it out.

Are you suggesting that the National Guard asks enlisted men to store guns in their own homes? Of course not; you are thinking of an army in the field. That's a whole different thing.
11.6.2008 3:46pm
SPQR (mail) (www):
Seadrive, he's probably thinking of the Swiss. Its worked well for them.
11.6.2008 4:18pm
Dilan Esper (mail) (www):
Flimflam:

I suspect the Supreme Court will eventually rule that the Second Amendment applies to the states.

That said, I think you are ignoring the fact that lower courts can't simply rely on their own conceptions of the Constitution but must attempt to predict how the Supreme Court will rule. And given the lack of caselaw on the issue, it's not going to be easy. Accordingly, I suspect that somewhere along the line, some court is going to rule that it isn't incorporated.
11.6.2008 4:28pm
zippypinhead:
Lest I be accused of pulling a Jukeboxgrad stunt and secretly citing myself as persuasive authority, in the interest of full disclosure I earlier made this basic point (and some others about this case) on Dave Hardy's blog, but here goes for a different readership:

Heller holds that forcing firearms to be kept in an inoperable condition, and thus unavailable for immediate self-defense in the home, violates the Second Amendment. The safe-storage issue in this case, however, is a bit more complicated, in that under New York law only the petitioner was licensed to possess the handgun. His wife, who on the available record apparently did not have a permit, was able to get access to the handgun and kill herself with it. If we assume the suicide happened while petitioner was not around (a reasonable assumption in the majority of suicides of this type), then the handgun was left accessible to an unauthorized person when petitioner did not need it to be available for immediate self-defense in the home. And leaving firearms where unauthorized persons can easily find and use them when you're not home (whether it's children, burglers, or suicidal spouses) might be considered per se negligence.

If those are the facts developed on remand, Suffolk County might still get to deny petitioner his permit.

But frankly, there are a lot of bigger problems with this trial court opinion. IMHO the biggest (after the lack of discussion of incorporation) is that it overlooks the minor problem that New York's may-issue permit scheme appears to violate the Second Amendment. Specifically, the requirement that individuals must first be issued a discretionary permit in order to possess a handgun in the home for self-defense appears to directly violate Heller's teachings, either facially or at least on an as-applied basis.
11.6.2008 4:59pm
Visitor Again:
As I read it, the court thinks that requirements that a handgun be stored locked or inoperable are unconstitutional, but other kinds of storage requirements might be. The remand is therefore to determine whether Colaiacovo may have acted in a supposedly unsafe manner beyond just storing the gun unlocked and operable.

The court ruling says the permit revocation apparently was based on the proposition that the gunowner's failure to keep his weapon in a locked safe, or otherwise inoperable, was an unspecified rule violation. Because the revocation of the permit cannot be based on constitutionally protected conduct, the court remanded for a determination whether the revocation was for conduct not protected by Heller.

Surely, in view of Heller, it is impermissible to rely on unspecified rule violations to revoke a permit for conduct related to the keeping of a gun within the home. Surely the "other kinds of storage requirements" that are constitutional under Heller would have to be requirements that already were spelled out in law or regulations so that the gun owner had advance notice that he was bound to comply with them. They could not be concocted to justify the revocation retroactively even if tailored to comply with the second amendment right in view of Heller.
11.6.2008 5:58pm
Kevin P. (mail):

zippypinhead:
Specifically, the requirement that individuals must first be issued a discretionary permit in order to possess a handgun in the home for self-defense...


In NY state, a permit to possess a handgun in the home is not discretionary. A permit to carry a handgun outside the home, even to the target range, is discretionary.

However, in my opinion even the permit to possess a handgun in the home is unconstitutional due to the combination of practices specific to New York State:
Prior restraint lasting several weeks and even months.
High fees (think poll tax)
The need for renewals.
The arbitrariness of the process as it varies across local jurisdictions. In my sister's hometown, she would have to get letters of reference from 5 people, all stating that they trusted her to own a handgun! In New York City, you have to make three visits to NYPD's downtown office during working hours.

All of the above combine to greatly infringe upon the right to own a handgun for defense in the home. It is especially true for poor people, minorities and the unconnected.

We would not tolerate New York's pistol permit scheme as applied to any other constitutional right.
11.6.2008 8:26pm
PubliusFL:
SeaDrive: "Are you suggesting that the National Guard asks enlisted men to store guns in their own homes? Of course not; you are thinking of an army in the field. That's a whole different thing."

The National Guard bears little resemblance to the militia the Founders had in mind.
11.6.2008 9:03pm
ReaderY:
It seems there are two issues that differentiate this case from Heller.

1. Incorportation. By its terms Heller applies only to the Federal Government.

2. The wife didn't have a permit. (Can a state obligate a permit holder to keep guns away from non permit holders at the same household?)

What I'm wondering is if this type of hearing is ex parte. If it is, it makes complete sense for the judge to raise only a possible constitutional issue and remand, and let the merits get argued when the issue comes up before both parties. If not, then at least the incorporation issue probably should have been decided in the order, since leaving it until leater would only unnecessarily prolong the litigation.
11.6.2008 9:45pm
ReaderY:
It seems there are two issues that differentiate this case from Heller.

1. Incorportation. By its terms Heller applies only to the Federal Government.

2. The wife didn't have a permit. (Can a state obligate a permit holder to keep guns away from non permit holders at the same household?)

What I'm wondering is if this type of hearing is ex parte. If it is, it makes complete sense for the judge to raise only a possible constitutional issue and remand, and let the merits get argued when the issue comes up before both parties. If not, then at least the incorporation issue probably should have been decided in the order, since leaving it until leater would only unnecessarily prolong the litigation.
11.6.2008 9:45pm
ReaderY:
Ooops, looked at the order again and see that respondant submitted an answer. The judge should have decided these issues.
11.6.2008 9:47pm
pst314 (mail):
A modest suggestion: It shall be legal to have a gun-grabbing progressive in the legislature, but only as long as he is kept locked up and disassembled. ;-)
11.6.2008 9:52pm
bobby b (mail):
"The wording in this sentence is unclear to me, but IANAL."
- - -

No way. A truly anal person would've cleaned up that grammer before posting.
11.6.2008 10:24pm
Bill2:

I'm curious about what the other storage requirements might be that WOULD be considered constitutional. Any idea what they have in mind here?


There are a number of products on the market that allow one to keep a loaded handgun instantly ready yet locked up from unauthorized users. The simplest a just miniature gun safe just large enough for the task, with pushbutton combination locks designed to be opened by feel if you know the combination. There is a more complex product that involves alteration of the firearm so it won't fire unless the user is wearing a certain magnetic ring on the hand holding the gun. The latter is likely expensive, considering both the kit and the gunsmithing to install it. The former is under $100 and available at almost any gun shop, sporting goods store or gun show. Finally you could simply put a common luggage lock on a hard plastic pistol case like they sell for $10 or so almost anywhere (and probably half or more manufacturers currently ship new handguns in such cases, which almost universally have holes for the locks).
11.6.2008 10:27pm
Bill2:

I'm also curious about whether there's a body of literature that separates the question of children being involved, since in popular discussion of this topic one often hears people making a distinction between rules that ought to apply when children are involved. I don't know how we are supposed to draw lines like that clearly and fairly, so I tend to reject all of that line of reasoning. But are there certain cases or writings about this that focus on the "children factor"?


I don't know about literature, but I can address it from a practical standpoint as a gun-owning father of elementary-school-aged children. In a house with only adults, or even teenagers presumably trained in safe firearms handling (the overwhelming majority of regular shooters would so train their children by the time they are teens), having a loaded handgun in some handy place doesn't present a realistic safety risk. Small children changes the equation - they get into anything and everything. So, you simply have to secure anything dangerous - not just guns but household chemicals, sharp knives, whatever... It is almost like they are suicidal.

However, if one is intellectually honest (as opposed to a knee-jerk anti-gunner looking to justify a ban, or some sort of fanatic on the other side), there are solutions that secure weapons from casual access without significantly compromising their instant readiness for defensive use. Unfortunately, most "safe storage laws" seem to have been crafted for the purpose of precluding readiness for defensive use (but I editorialize).
11.6.2008 10:50pm
ThomasD (mail):
The National Guard bears little resemblance to the militia the Founders had in mind.

The National Guard is only one part of the militia as defined by Federal law.

10 U.S. Code sec. 311


(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

11.6.2008 10:50pm
zippypinhead:
Kevin P. wrote:
In NY state, a permit to possess a handgun in the home is not discretionary. A permit to carry a handgun outside the home, even to the target range, is discretionary.
While I don't practice law in New York, that wasn't quite the understanding I got from a quick peek at state law when I was trying to figure out howintheheck the case on this thread got into its bizarre procedural posture. Rather than try to characterize the statutes myself, NRAILA posts generally good summaries of state firearms laws, and for New York they say:
"A license is needed to possess a handgun in one's home or place of business. Application is made to the licensing officer of the city or county where the applicant resides.... The determination whether to grant the license is completely within the discretion of the licensing officer. However, the licensing officer must state specifically and concisely in writing the reasons for a denial. A denial can only be overturned in court if the denial is shown to be arbitrary and capricious."
* * *
"The licensing officer may, in his discretion, add restrictions to the license, limiting the places where the handgun may be kept or carried. No demonstration of need to possess is required to obtain an "on premises only," license valid for one's home or place of business. A demonstration of need must be shown, however, for a license not restricted to one of those locations.
Now that sounds a lot like a relatively unfettered "may-issue" standard to me - even a home-only premises license may be denied for any reason other than "failure to demonstrate need," provided the reason is not "arbitrary and capricious" (a fairly high-deference standard of judicial review for administrative action). And given the horror stories of how difficult it is to get any permit in some localities (e.g., NYC), the level of apparently unfettered discretion that is available to local officials in N.Y. to keep you from having a handgun in your home for self-defense really smells like it is going to run afoul of Heller one of these days.
11.6.2008 11:39pm
stubbs:
This all reminds me of 1971, when I graduated from Columbia and for a summer drove a cab in New York. As I recall, several cabbies were murdered that summer, and for that reason I questioned the police about what it would require for me to get a permit to carry a gun. I had grown up in the South, hunted, and felt no fear of guns or gun owners, except cabbie thieves. The police basically laughed at me. Their opinion was that I would never get a permit under any circumstances.

I didn't pursue the matter, and I quit hacking after a night during which two perfectly middle class customers beat me out of fares. Before that night, however, I was robbed several times, once by a thief with a gun.

I would very much like to know whether or not your readers think that I should have had the right to shoot the armed robber I did encounter. I had a long conversation with him, and he told me that his drug addiction overruled his otherwise humane attitudes, and that he would kill me if I did not give him the dollar bills he could clearly see in my shirt pocket (where I kept them for change).
11.7.2008 12:11am
zippypinhead:
I'm curious about what the other storage requirements might be that WOULD be considered constitutional. Any idea what they have in mind here?
A really good question, that's sure to end up litigated one of these days. Just to be mildly controversial, how about this proposal:

It may be OK under Heller to have a rule forcing you to keep your C&R rifle collection in the gun safe when you're not actually playing with them, but you shouldn't be forced to keep the handgun(s) you intend to rely on for home defense locked up or disabled when you're home. If you even want to stand loaded Barrett .50 BMGs in every corner of every room of your house just in case a platoon of PCP-addled grizzly bears wearing body armor breaks in on you, that's OK too. BUT if neither you nor any other person who can lawfully possess and safely use your guns are there, then they all need to be locked up. Which is also common sense - you shouldn't leave your expensive and/or dangerous toys out for burglars, kids, or unstable and suicidal spouses to play with when you're not there to supervise them.
11.7.2008 12:13am
zippypinhead:
I would very much like to know whether or not your readers think that I should have had the right to shoot the armed robber I did encounter.
Short answer: Yes. Assuming you couldn't safely retreat from the deadly force (unlikely on your facts), there's a general common law right to defend against deadly force with equal force. But first there's the minor problem of getting the courts to rule that the Second Amendment right to keep and bear arms for self-defense extends outside your home. Heller explicitly did not reach that issue. Maybe someday...

I believe I once read about an attempt by a cabbie to get around the D.C. handgun ban by arguing his cab was his place of business and he therefore qualified for the business premises exception to the ban, but the District government wouldn't go for it.
11.7.2008 12:25am
pintler:

Finally you could simply put a common luggage lock on a hard plastic pistol case like they sell for $10 or so almost anywhere


The wife wants access to the gun. She is alone with a locked plastic case. Being the handyman type, I can't see one of those cases keeping anyone but a toddler out for more than a few minutes. Even safes are only designed to slow burglars down - I don't think the average gun safe will stop too many people who have a few hours to work on it.
11.7.2008 9:10am
Bill2:

I don't think the average gun safe will stop too many people who have a few hours to work on it.


No arguement. The legitimate intent of a safe storage requirement that does not excessively burden the utility of the firearm for self defense (and therefore run up against Heller) would be to prevent casual access by children (and I mean children, not minors - the typical 14 year old can do anything an adult could). Truly burglar-proof storage is probably not possible even if you don't care about the firearm being accessible to the owner in an emergency.
11.7.2008 10:07am
Bill2:

It may be OK under Heller to have a rule forcing you to keep your C&R rifle collection in the gun safe when you're not actually playing with them, but you shouldn't be forced to keep the handgun(s) you intend to rely on for home defense locked up or disabled when you're home. If you even want to stand loaded Barrett .50 BMGs in every corner of every room of your house just in case a platoon of PCP-addled grizzly bears wearing body armor breaks in on you, that's OK too.


I'm not so sure. As discussed above, products are readily available that secure a loaded handgun from casual access by children &so forth, while keeping it pretty nearly instantly available to the owner. I think a safe storage law that permitted the use of such products would fly. The problem is that the typical "safe storage" law doesn't permit that sort of thing, but requires disassembly or trigger locks or some such. Not that I'm advocating any sort of law, just noting that there is a reasonable middle ground.
11.7.2008 10:18am
Suzy (mail):
Thanks to those of you who have posted answers to my questions above. I am still beginning to learn about this area. I can get behind the idea that you are responsible for securing your own guns, but I cannot get behind the idea that the gun MUST be kept locked at all times. Because I have small children, and friends of theirs who visit the house, it makes sense for me to keep guns locked. When I am alone in the house, however, I do not want to do that, for good reason.

Anyway, you might be interested to know that I have a number of acquaintances who are scared to even allow their children into a house that has guns in it. Do I have special obligations to such persons? I do not care to disclose to them whether or not I have guns in my home, PRECISELY because that makes the situation safer. Yet it seems that I am violating their wishes if they tell me they don't want their kids in a house that contains guns. Solution: fewer playdates! But that's not a perfect solution...
11.7.2008 12:46pm
zippypinhead:
Because I have small children, and friends of theirs who visit the house, it makes sense for me to keep guns locked. When I am alone in the house, however, I do not want to do that, for good reason.
Suzy, that seems to be a reasonable position. It's your right to have firearms available for immediate self-defense, but you also have an obligation to prevent them from falling into the hands of unauthorized or irresponsible persons -- and children are exhibit A in that category. For your own children, you might want to explore teaching them the principles of the NRA's Eddie Eagle program, which I know from personal experience works pretty well. Link to the parents' guide is here.

I have a number of acquaintances who are scared to even allow their children into a house that has guns in it. Do I have special obligations to such persons? I do not care to disclose to them whether or not I have guns in my home, PRECISELY because that makes the situation safer.
That's a sociological question more than a legal one. My view: you owe nobody an explanation that you have guns in the home. In fact, it's generally recommended that gun owners not publicize that fact, for several reasons. And if there are small children visiting, they should never see that you have guns if you're doing what you should.

Anti-gun parents are a tough problem -- if they ask specifically, how you respond may depend on many things, including what kind of general relationship you have with them. If you're friends, you might even try to reassure them by showing them your gun safe and explaining that everything is totally inaccessible to children. But frankly, anybody who feels so paranoid about firearms that they make an issue of it may not react rationally regardless of the objective facts. So I'd just go with "be very discreet" and hope it doesn't come up.
11.7.2008 3:05pm
pst314 (mail):
"I would very much like to know whether or not your readers think that I should have had the right to shoot the armed robber I did encounter."

Not only should you have had the right to shoot the robber, the city should give you a medal.
11.7.2008 10:53pm
Carl in Chicago (mail):

I would very much like to know whether or not your readers think that I should have had the right to shoot the armed robber I did encounter. I had a long conversation with him, and he told me that his drug addiction overruled his otherwise humane attitudes, and that he would kill me if I did not give him the dollar bills he could clearly see in my shirt pocket (where I kept them for change).


OT, but clearly yes. Because he was armed, you would reasonably have feared for your life or grave bodily injury. There can be no excuse (eg. addiction) for criminal coersion by force or threat of force. There is no question whether you'd been within your rights to stop the attacker using lethal force. There is also no question that your rights were violated (by laws preventing your right to bear arms, thus enabling you to stop the attacker). A more debatable question is whether it was/is your civil duty or obligation to stop or kill an armed attacker.

Bobby b: "IANAL" does not abbreviate anything regarding anal retentiveness. It abbreviates "I Am Not A Lawyer."
11.8.2008 10:07am